Department of Transportation v. Clark

337 S.E.2d 461, 176 Ga. App. 743, 1985 Ga. App. LEXIS 2523

Opinions

McMurray, Presiding Judge.

In this condemnation case the judgment of the trial court is affirmed without opinion pursuant to Rule 36 of the Rules of the Court of Appeals of the State of Georgia. ¹

Appellee has moved this court to award damages pursuant to OCGA § 5-6-6 contending that the appeal has been filed for purposes of delay only. While we have found no merit in the enumerations of error, we do not conclude that appellant’s enumerations were so specious as to warrant the conclusion that this appeal was taken for the purpose of delay only. The motion for assessment of penalty, therefore, is denied.

Judgment affirmed in accordance with Court of Appeals Rule 36.

Deen, P. J., Birdsong, P. J., Carley, Sognier, and Pope, JJ., concur. Banke, C. J., Benham and Beasley, JJ., dissent.

1

Rule 36 of the Rules of the Court of Appeals of the State of Georgia provides:

“Cases in which one or more of the following circumstances exist and are dispositive of the appeal, to wit:

(1) the evidence supports the judgment;

(2) no reversible error of law appears and an opinion would have no precedential value;

(3) the judgment of the court below adequately explains the decision, may be affirmed as follows: ‘AFFIRMED IN ACCORDANCE WITH COURT OF APPEALS RULE 36.’ ”